Regulatory Compliance and Best Practice for Customer Contracts. James Walsh Eversheds LLP 18 October 2012

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1 Regulatory Compliance and Best Practice for Customer Contracts James Walsh Eversheds LLP 18 October 2012

2 Agenda Regulations applicable to B2B contracts Regulations applicable to consumer contracts Best practices for customer contracts Questions

3 Regulatory compliance - overview Applicable laws and regulations include: General Conditions of Entitlement Communications Act 2003 Unfair Contract Terms Act 1977 Data Protection Act 1990 Unfair Terms in Consumer Contracts Regulations 1990 Consumer Protection from Unfair Trading Regulations 2008

4 Regulatory compliance - overview Laws and regulations not covered in this presentation, but which may apply to the contracting process if not the terms and conditions of customer contracts, include: Consumer Protection (Distance Selling) Regulations 2000 Electronic Commerce (EC Directive) Regulations 2002 Privacy and Electronic Communications Regulations Advertising Standards Codes Phone Pay Plus Code of Practice BT Undertakings Data retention laws and various others

5 Regulatory compliance B2B Communications Act Source of various definitions for the General Conditions and Ofcom s powers to set those conditions Unfair Contract Terms Act 1977 Applies to exclusion/limitation clauses various types of loss cannot be excluded, in other circumstances exclusions must be reasonable Data protection In many customer contracts CPs process personal data CPs typically avoid responsibility Customer look for CPs to have appropriate technical and organisational measures against unauthorised processing and accidental loss/damage to personal data

6 Regulatory compliance B2B General Conditions of Entitlement Customers, Subscribers, End Users, Consumers, Users, and Small Business Customers overcoming the terminology Note the position of CPs GC 9.2 minimum requirements for contracts concluded after 25 May 2011 GC 9.3 termination procedures should not act as a disincentive for End-Users changing CP GC 9.5 Users must be able to subscribe to a contract with a maximum duration of 12 months GC 9.6 Subscribers must be given notice of modifications of material detriment & right to terminate

7 Regulatory compliance B2B General Conditions of Entitlement (cont.) GC 10 clear information on standard terms and conditions must be published GC 18 CPs must provide Number Portability within the shortest possible time on reasonable terms and conditions, including charges, to any of its Subscribers who so request GC 23 - sale and marketing of mobile telephony services GC 24 sale and marketing of fixed-line telephony services

8 Regulatory compliance B2C UK consumer-protection measures: Communications Act 2003 & The General Conditions Unfair Contract Terms Act 1977 Unfair Terms in Consumer Contracts Regulations 1999 Consumer Protection from Unfair Trading Regulations Consumer Protection from Unfair Trading Regulations 2008

9 Regulatory compliance B2C GC 9.7 Consumer - recap someone who uses or requests a service for nonbusiness use can include someone non-contractually bound to the supplier (N.B. marketing practices and advertisements) Differences in treatment of consumers and small business customers compared to other subscribers GC 9.3 specific terms applicable to fixed line telecommunications services and broadband services to consumers express consent is required GC 9.4 maximum commitment period of 24 months & compensation must relate only to the initial period GC 9.6 note that material detriment may be judged differently in consumer contracts

10 Regulatory Compliance B2C Under GC 14 CSPs are required to produce a basic Code of Practice for its domestic and small business customers: needs to be easy to understand and provided on request There are a range of different requirements that need to be covered under the Code of Practice, including: relevant information under GC 10.2 complaint handling (in accordance with the Ofcom Approved Code of Practice for Complaints Handling) the implementation of a dispute resolution scheme Premium Rate Services, NTS, 0870 numbers & Personal Numbers

11 Regulatory Compliance B2C Unfair Contract Terms Act 1977 Differences in relation to consumer contracts: All exclusions or limitations of liability are subject to the reasonableness test Indemnities required of the consumer for other persons negligence or breach of contract are also subject to reasonableness Additional terms that cannot be excluded or limited at all such as implied warranty of fitness for purpose in a sale of goods contract Courts will consider e.g. bargaining power of the parties and whether any inducement was given to customer to agree the term

12 Regulatory Compliance B2C Unfair Terms in Consumer Contracts Regulations 1999 Apply to: All types of clause (unlike UCTA) B2C contracts only (UCTA applies to B2B contracts too) Terms which have not been individually negotiated Terms must be in plain and intelligible language If term is unfair it will not bind the consumer Fairness test not applicable to core provisions (i.e. main subject matter of contract) Term considered unfair if: Lack of good faith Significant imbalance between parties rights/obligations

13 Regulatory Compliance B2C Consumer Protection from Unfair Trading Regulations 2008 Implement the Unfair Commercial Practices Directive (2005/29/EC)» the Directive prohibits unfair B2C business practices before, during and after a transaction. 3 types of prohibition: 1. General prohibition of unfair commercial practices (reg 3) 2. Misleading actions (reg 5) or omissions (reg 6) and aggressive practices (reg 7) practices automatically deemed unfair (sch 1) Unfair if: contravenes requirements of professional diligence AND materially distorts economic behaviour of average consumer in relation to a product (or likely to)

14 Best practices for customer contracts Clearly compliance with applicable laws and regulations is best practice But don t forget the basics! Customer contracts are subject to common law and equity where applicable It is important that contracts are properly formed and customer are notified of terms sufficiently to incorporate them into the contract Onerous terms need to be brought to attention of customers CPs need to manage risk and protect revenue Don t forget key contractual provisions

15 Questions? Don t forget you can call our hotline for FCS members!

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